Why Is There Law? Skeptic Interviews Oxford Professor Fernanda Pirie
Fernanda Pirie is Professor of the Anthropology of Law at the University of Oxford. She is the author of The Anthropology of Law and has conducted fieldwork in the mountains of Ladakh and the grasslands of eastern Tibet. She earned a DPhil in Social Anthropology from Oxford in 2002, an MSc in Social Anthropology at University College London in 1998, and a BA in French and Philosophy from Oxford in 1986. She spent almost a decade practicing as a barrister at the London bar. Her most recent book is The Rule of Laws: A 4,000-Year Quest to Order the World.
Skeptic: Why do we need laws? Can’t we all just get along?
Fernanda Pirie: That assumes we need laws to resolve our disputes. The fact is, there are plenty of societies that do perfectly well without formal laws, and that’s one of the questions I explore in my work: Who makes the law, and why? Not all sophisticated societies have created formal laws. For instance, the ancient Egyptians managed quite well without them. The Maya and the Aztec, as far as we can tell, had no formal laws. Plenty of much smaller communities and groups also functioned perfectly well without them. So, using law to address disputes is just one particular social approach. I don’t think it’s a matter of simply getting along; I do believe it’s inevitable that people will come into conflict, but there are many ways to resolve it. Law is just one of those methods.
It’s inevitable that people will come into conflict, but there are many ways to resolve it. Law is just one of those methods.
Skeptic: Let’s talk about power and law. Are laws written and then an authority is needed to enforce them, which creates hierarchy in society? Or does hierarchy develop for some other reason, and then law follows to deal with that particular structure?
FP: I wouldn’t say there’s always a single direction of development. In ancient India, for example, a hierarchy gradually developed over several thousand years during the first millennium BCE, with priests—eventually the Brahmins—and the king at the top. This evolved into the caste system we know today. The laws came later in that process. Legal texts, written by the Brahmins, outlined rules that everyone—including kings—had to follow.
Skeptic: So, the idea of writing laws down or literally chiseling them in stone is to create something tangible to refer to.. Not just, “Hey, don’t you remember, I said six months ago you shouldn’t do that?” Instead, it’s formalized, and everyone has a copy. We all know what it is, so you can hold people morally accountable for their actions.
FP: Exactly. That distinction makes a big difference. Every society has customs and norms; they often have elders or other sources of authority, who serve as experts in maintaining their traditions. But when it’s just a matter of, “This is what we’ve always done—don’t you remember?” some people can conveniently forget. Once something is written down, though, it gains authority. You can refer to the exact words, which opens up different possibilities for exercising power. “Look, these are the laws—everyone must know and follow them.” But it equally creates opportunities for holding people accountable.
Skeptic: So it’s a matter of “If you break the law, then these are the consequences.” It’s almost like a logic problem—if P, then Q. There’s an internal logic to it, a causal reasoning where B follows A, so we assume A causes B. Is something like that going on, cognitively?
Once something is written down, it gains authority. You can refer to the exact words, which opens up different possibilities for exercising power.
FP: Well, that cause-and-effect form is a feature of many legal systems, but not all of them. It’s very prominent in the Mesopotamian tradition, which influenced both Jewish law and Islamic law, and eventually Roman law—the legal systems that dominate the world today. It’s associated with the specification of rights—if someone does this, they are entitled to that kind of compensation, or this must follow from that. But the laws that developed in China and India were quite different. The Chinese had a more top-down, punitive system, focused on discipline and punishment. It was still an “if-then” system, but more about, “If you do this wrong, you shall be punished.” It was very centralized and controlling. In Hindu India, the laws were more about individual duty: this is what you ought to do to be a good Hindu. If you’re a king, you should resolve disputes in a particular way. The distinctions between these systems aren’t always sharp, but the casuistic form is indeed a particular feature of certain legal traditions.
Laws have never simply been rules. They’ve created intricate maps for civilization. Far from being purely concrete or mundane, laws have historically presented a social vision, promised justice, invoked a moral order ordained by God (or the Gods), or enshrined the principles of democracy and human rights. And while laws have often been instruments of power, they’ve just as often been the means of resisting it. Yet, the rule of law is neither universal nor inevitable. Some rulers have avoided submitting themselves to the constraints of law—Chinese emperors did so for 2,000 years. The rule of law has a long history, and we need to understand that history to appreciate what law is, what it does, and how it can rule our world for better or worse.
The rule of law is neither universal nor inevitable. Some rulers have avoided submitting themselves to the constraints of law.
Skeptic: In some ways it seems like we are seeking what the economist Thomas Sowell calls cosmic justice, where in the end everything is settled and everyone gets their just desserts. One purpose of the Christian afterlife is that all old scores are settled. God will judge everything and do so correctly. So, even if you think you got away with something, in the long run you didn’t. There’s an eye in the sky that sees all, and that adds an element of divine order to legal systems.
FP: Absolutely, and that characterizes many of the major legal systems, especially those associated with religion. Take the Hindu legal system—it’s deeply tied to a sense of cosmological order. Everyone must follow their Dharma, and the Brahmins set up the rules to help people follow their Dharma, so they can achieve a better rebirth. Similarly, Islamic Sharia law, which has had a poor reputation in recent times, is seen as following God’s path for the world, guiding people on how they should behave in accordance with a divine plan. Even the Chinese, who historically had a more top-down and punitive system, claimed that their emperors held the Mandate of Heaven—that’s why people had to obey them and their laws. They were at the top of the pyramid because of such divine authority.
Of course, there have also been laws that are much more pragmatic—rules that merchants follow to maintain their networks, or village regulations. Not all law is tied to a cosmic vision, but many of the most impressive and long-lasting legal systems have been.
Islamic Sharia law is seen as following God’s path for the world. Even the Chinese, who historically had a more top-down and punitive system, claimed that their emperors held the Mandate of Heaven.
Skeptic: The Arab–Israeli conflict can be seen as two people holding a deed to the same piece of land, each claiming, “The title company that guarantees my ownership is God and His Holy Book.” Unfortunately, God has written more than one Holy Book, leading both sides to claim divine ownership, with no cosmic court to settle the dispute.
FP: That’s been the case throughout history—overlapping legal and political jurisdictions. Many people today are worried about whether the nation-state, as we know it, is breaking down, especially with the rise of supranational laws and transnational legal systems. But it’s always been like this—there have always been overlaps between religious laws, political systems, and social norms. The Middle East is a perfect example, with different religious communities living side by side. It hasn’t always been easy, but over time, people have developed ways of coexisting. The current political battles in the Middle East are part of this ongoing tension.
Skeptic: In your writing, you offer this great example from the Code of Hammurabi, 1755–1750 BC. It is the longest, best-organized, best-preserved legal text from the ancient Near East, written in the Old Akkadian dialect of Babylonian, and inscribed on a stone stele discovered in 1901.
“These are the judicial decisions that Hammurabi, the King, has established to bring about truth and a just order in his land.” That’s the text you quoted. “Let any wronged man who has a lawsuit”—interesting how the word ‘lawsuit’ is still in use today—”come before my image as King of Justice and have what is written on my stele read to him so that he may understand my precious commands, and let my stele demonstrate his position so that he may understand his case and calm his heart. I am Hammurabi, King of Justice, to whom Shamash has granted the truth.”
Many people today are worried about whether the nation-state, as we know it, is breaking down.
Then you provide this specific example: “If a man cuts down a tree in another man’s date orchard without permission, he shall pay 30 shekels of silver. If a man has given a field to a gardener to plant as a date orchard, when the gardener has planted it, he shall cultivate it for four years, and in the fifth year, the owner and gardener shall divide the yield equally, with the owner choosing first.”
This sounds like a modern business contract, or today’s U.S. Uniform Commercial Code.
FP: Indeed, it’s about ensuring fairness among the farmers, who were the backbone of Babylon’s wealth at the time. I also find it fascinating that there are laws dealing with compensation if doctors kill or injure their patients. We often think of medical negligence as a modern issue, but it’s been around for 4,000 years.
Skeptic: But how did they determine the value of, say, a stray cow or cutting down the wrong tree? How did they arrive at the figure of 30 shekels?
FP: That’s a really interesting question. These laws were meant to last, and even in a relatively stable society, the value of money would have changed over time. People have studied this and asked how anyone could follow these laws for the hundreds of years that the stele stood and people referred to it. My view is that these laws were more exemplary—they probably reflected actual cases, decisions that judges were making at the time.
Laws have never simply been rules; they have created intricate maps for civilization, presented a social vision, promised justice, invoked a moral order, and enshrined principles of democracy and human rights.
Although Hammurabi wrote down his rules, he didn’t expect people to apply them exactly as written, as we do with modern legal codes. Instead, they gave a sense of the kind of compensation that would be appropriate for different wrongs or crimes—guidelines, not hard rules. Hammurabi likely collected decisions from various judicial systems and grafted them into a set of general laws, but they still retain the flavor of individual judgments.
Skeptic: Is there a sense of “an eye for an eye, a tooth for a tooth”—where the punishment fits the crime, more or less?
FP: Absolutely. Hammurabi was trying to ensure that justice was done by laying out rules for appropriate responses to specific wrongs, ensuring fairness in compensation. But it’s crucial to understand that the famous phrase, “an eye for an eye, a tooth for a tooth,” which appears first in Hammurabi’s code and later in the laws of the Book of Exodus, wasn’t about enforcing revenge. Even though there’s a thousand-year gap between Hammurabi and the Bible, scholars believe this rule was about limiting revenge, not encouraging it. It meant that if someone sought revenge, it had to be proportional—an eye for an eye—but no more.
In other words, they wanted to prevent cycles of violence that arise from feuds. In a feuding society, someone steals a sheep, then someone retaliates by stealing a cow, and then someone tries to take an entire herd of sheep. The feud keeps getting bigger and bigger. So, the “eye for an eye” rule was a pragmatic approach in a society where feuding was common. It was meant to keep things under control.
Skeptic: From the ruler’s perspective, a feud is a net loss, regardless of who’s right or wrong.
FP: Feuding is a very common way of resolving disputes, especially among nomadic people. The idea, which makes a lot of sense, is that if you’re a nomadic pastoralist, your wealth is mobile—it’s your animals that have feet, which can be moved around. That also makes it easy to steal. If you’re a farmer, your wealth is tied to your land, so someone can’t run off with it. Since nomads are particularly vulnerable to theft, having a feuding system acts as a defense mechanism. It’s like saying, “If you steal my sheep, I’ll come and steal your cow.” You still see this in parts of the world, such as eastern Tibet, where I’ve done fieldwork. So, yes, kings and centralized rulers want to stop feuds because they represent a net loss. They want to put a lid on things and so establish a more centralized system of justice. This is exactly what Hammurabi was trying to do, and you see similar efforts in early Anglo- Saxon England, and all over the world.
Another interesting point is that every society has something to say about homicide. It’s so important that they have to lay out a response. However, I don’t think we should assume these laws were meant to stop people from killing each other. The fact is, we don’t refrain from murder because the law tells us not to. We don’t kill because we believe it’s wrong—except in the rare cases where morality has somehow become twisted and self-help justice occurs and people take the law into their own hands. The law, in this case, is more about what the social response should be once a killing has occurred. Should there be compensation? Punishment? What form should it take?
Every society needs some system to restore order and a sense of justice.
Skeptic: Is this why we need laws that are enforced regularly, fairly, justly, and consistently, so people don’t feel the need to take matters into their own hands?
FP: I’d put it a bit more broadly: we need systems of justice, which can include mediation systems. In a village in Ladakh—part of northern India with Tibetan populations where I did fieldwork—they didn’t have written laws, but they had very effective ways of resolving conflicts. They put a lot of pressure on the parties to calm down, shake hands, and settle the dispute. It’s vastly different from the nomads I worked with later in eastern Tibet, who had a very different approach. But both systems were extremely effective, and there was a strong moral sense that people shouldn’t fight or even get angry. It’s easy to look at these practices and say they’re not justice, especially when serious things like injuries, killings, or even rape are settled in this way. But for these villages, maintaining peace and order in the community was paramount, and it worked for them.
Every society needs some system to restore order and a sense of justice. What constitutes justice can vary greatly—sometimes it’s revenge, sometimes it’s about restoring order. Laws can be part of that system, and in complex societies, it becomes much harder to rely on bottom-up systems of mediation or conciliation. That’s where having written laws and judges becomes very useful.
Skeptic: In communities without laws or courts, do they just agree, “Tomorrow we’re going to meet at noon, and we’ll all sit down and talk this out?”
FP: Essentially, yes. In the communities I spent time with, it was the headman’s duty to call a village meeting, and everyone was expected to attend and help resolve the issue. In a small community like that, you absolutely could do it.
Skeptic: And if you don’t show up?
FP: There’s huge social pressure for people to play their part in village politics and contribute to village funds and activities.
Skeptic: And if they don’t, then what? Are they gossiped about, shunned, or shamed?
FP: Yes—all of those things, in various ways.
Skeptic: Let’s talk about religious laws. You mentioned Sharia, and from a Western perspective, it’s often seen as a disaster because it’s been hyped up and associated with terrorism. Can you explain how religious laws differ from secular laws?
FP: I’m wondering how much one can generalize here. I’m thinking of the religious laws of Hindu India, Islamic laws, Jewish laws, and I suppose Canon law in Europe—Christian law. I hesitate to generalize, though.
Skeptic: What often confounds modern minds are the very specific laws in Leviticus—like which food you can eat, which clothes you can wear, and how to deal with adultery, which would certainly seem to concern the affected spouse. But why should the state—or whatever governing laws or body—even care about such specific issues?
FP: This highlights a crucial point. In Jewish, Hindu, and Islamic law, the legal and moral spheres are part of the same domain. A lot of these laws are really about guiding people on how to live moral lives according to dharma, God’s will, or divine command. The distinction we often make between law and religion, or law and morality, doesn’t apply in those contexts. The laws are about instructing people on how to live properly, which can involve family relations, contracts, land ownership, but also prayer and ritual.
As for the laws in Leviticus, they’ve puzzled people for a long time. They seem to be about purity and how Jews should live as good people, following rules of cleanliness, which partly distinguished them from other tribes.
Skeptic: What exactly is Sharia law?
FP: Sharia literally means “God’s path for the world.” It’s not best translated as “law” in the way we understand it. It’s more about following the path that God has laid out for us, a path we can’t fully comprehend but must do our best to interpret. The Quran is a guide, but it doesn’t lay out in detail everything we should do. The early Islamic scholars—who were very important in its formative days—studied the Quran and the Hadith (which tradition maintains records the Prophet’s words and actions) to work out just how Muslims should live according to God’s command. They developed texts called fiqh, which are what we might call legal texts, going into more detail about land ownership, commercial activities, legal disputes, inheritance, and charitable trusts.
Islamic law has very little to say about crime.
Islamic law has very little to say about crime. That’s one misconception. People tend to think it’s all about harsh punishments, but the Quran mentions crime only briefly. That was largely the business of the caliphs—the rulers—who were responsible for maintaining law and order. Sharia is much more concerned with ritual and morality, and with civil matters like inheritance and charitable trusts.
Skeptic: Much of biblical legal and moral codes have changed over time. Christianity went through the Enlightenment. But Islam didn’t seem to go through a similar process. Is that a fair characterization?
FP: I’d say that’s partly right. But I’ve never thought about it in exactly those terms. In any legal tradition, there’s resistance to change—that’s kind of the point of law. It’s objective and fixed, so any change requires deep thought. In the Islamic world, there’s been a particularly strong sense that it’s not for people to change or reinterpret God’s path. The law was seen as something fixed.
But in practice, legal scholars, called muftis, were constantly adapting and changing legal practices to suit different contexts and environments. That’s one of the real issues today—Islamic law has become a symbol of resistance to the West, appealing to fundamentalism by going “back to the beginning.”
Skeptic: Let’s talk about stateless law of tribes, villages, networks, and gangs. For example, we tend to think of pirates as lawless, chaotic psychopaths who just randomly raided commerce and people. But, in fact, they were pretty orderly. They had their own constitutions. Each ship had a contract that everyone had to sign, outlining the rules. There’s even this interesting analysis of the Jolly Roger (skull and crossbones) flag. Why fly that flag and alert another ship that you’re coming? In his book The Invisible Hook: The Hidden Economics of Pirates, the economist Peter Leeson argued that it is a signal: “We’re dangerous pirates, and we’re coming to take your stuff, so you might as well hand it over to us, and we won’t kill you.” It’s better for the pirates because they can get the loot without the violence, and it’s better for the victims because they get to keep their lives. Occasionally, you do have to be brutal and make sure your reputation as a badass pirate gets a lot of publicity, so people know that when they see the flag, they should just surrender. But overall, it was a pretty orderly system.
FP: Yes, but it’s only kind of organized. That’s the point. For example, in The Godfather Don Corleone was essentially making up his own rules, using his power to tell others what he wanted. That’s the nature of the Mafia—yes, they had omertà (the rule of silence) and rules about treating each other’s wives with respect, but these rules were never written down. Alleged members who went on trial even denied—under oath—that any kind of organization or rules existed. This was particularly true with the Sicilian Mafia. The denial served two purposes: first, it protected them from outside scrutiny, and second, it allowed powerful figures like Don Corleone—or the real-life Sicilian bosses—to bend the rules whenever they saw fit. If the rules aren’t written down, it’s harder to hold them accountable. They can simply break the rules and impose their will.
Skeptic: Let’s discuss international law. In 1977, David Irving published Hitler’s War, in which he claimed that Hitler didn’t really know about the Holocaust. Rather, Irving blamed it on Himmler specifically, and other high-ranking Nazis in general, along with their obedient underlings. Irving even offered $1,000 to anyone who could produce an order from Hitler saying, “I, Adolf Hitler, hereby order the extermination of European Jewry.” Of course, no such order exists. This is an example of how you shift away from a legal system. The Nazis tried to justify what they were doing with law, but at some point, you can’t write down, “We’re going to kill all the Jews.” That can’t be a formal law.
FP: Exactly. Nazi Germany had a complex legal case, and I’m not an expert on it, but you can see at least a couple legal domains at play. First, they were concerned with international law, especially in how they conducted warfare in the Soviet Union. They at least tried to make a show of following international laws of war. Second, operationally, they created countless laws to keep Germany and the war effort functioning. They used law instrumentally. But when they felt morally uncomfortable with what they were doing, the obvious move was to avoid writing anything down. If it wasn’t documented, it wasn’t visible, and so it became much harder to hold anyone accountable.
Nazi Germany had a complex legal case. Operationally, they created countless laws to keep Germany and the war effort functioning. They used law instrumentally.
Skeptic: During the Nuremberg trials, the defense’s argument was often, “Well, we lost, but if we had won, this would have been legal.” So they claimed it wasn’t fair to hold these trials since they violated the well-established principle of ex post facto, because there was no international law at the time. National sovereignty and self-determination was the norm, so they were saying, in terms of the law of nations, “We were just doing what we do, and it’s none of your business.”
FP: Legally speaking, the Nuremberg trials were both innovative and hugely problematic. The court assumed the power to sit in judgment on what the leaders of independent nation-states were doing within their borders, or at least largely within their borders (the six largest Nazi death camps were in conquered Poland). But it was revolutionary in terms of developing the concepts of genocide, crimes against humanity, and the reach of international law with a humanitarian focus. So yes, it was innovative and legally difficult to justify, but I don’t think anyone involved felt there was any question that what they were doing was the right thing.
Skeptic: It also established the legal precedent that, going forward, any dictator who commits these kinds of atrocities—if captured—would be held accountable.
FP: Exactly. And that eventually led to the movement that set up the International Criminal Court, where Slobodan Milošević was prosecuted, along with other leaders. Although, it’s extremely difficult to bring such people to trial, and ultimately, the process can be more symbolic than practical.
Is the existence of the International Criminal Court really going to stop someone from committing mass atrocities? I doubt it. But it does symbolize to the world that genocide and other heinous crimes will be called out, and people must be held accountable. In a way, it represents the wider moral world we want to live in and the standards we expect nations to uphold.
Skeptic: Skeptic once asked Elon Musk: “When you start the first Mars colony, what documents would you recommend using to establish a governing system? The U.S. Constitution, the Bill of Rights, the Universal Declaration of Human Rights, the Humanist Manifesto, Atlas Shrugged, or Against the State, an anarcho-capitalist manifesto?” He responded with, “Direct democracy by the people. Laws must be short, as there is trickery in length. Automatic expiration of rules to prevent death by bureaucracy. Any rule can be removed by 40 percent of the people to overcome inertia. Freedom.”
FP: What a great, specific response! He’s really thought about this. Those are some interesting ideas, and I agree that there’s a lot to be said for direct democracy. The main problem with direct democracy, however, is that when you have too many people it becomes cumbersome. How do you gather everyone in a sensible way? The Athenians and Romans had huge assemblies, which created a sense of equality, and that’s valuable. Another thing I would do, which I’ve discussed with a colleague of mine, Al Pashar, is to rotate positions of power. She did research in Indian villages, and I’ve done work with Tibetans in Ladakh, and we found they had similar systems where every household provided a headman or headwoman in turn.
Rotating power is effective at preventing individuals from concentrating too much power.
You might think rotating leadership wouldn’t work, because some people aren’t good leaders, while others are. Wouldn’t it be better to elect the best person for the job? But we found that rotating power is effective at preventing individuals from concentrating too much power. Yes, it’s good to have competent leaders, but when their family or descendants form an elite, you get a hierarchy and bureaucracy. Rotating power prevents that. That’s what I would do in terms of a political system.
As for laws, I’m less concerned with their length, as long as they are accessible and visible for everyone to read and reference. What’s important is having essential laws clearly posted for all to see. And there should be a good system for resolving disputes—perhaps mediation and conciliation rather than a lot of complex laws, with just a few laws in the background.
Skeptic: We’ll send this to Elon, and maybe he’ll hire you to join his team of social engineers.
FP: Although I’m not sure I want to go to Mars, I’d be happy to advise from the comfort of Oxford!